Citation Nr: 1807571 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-14 716 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for hearing loss of the right ear. 2. Entitlement to service connection for a back disorder. 3. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a right shoulder disorder. ORDER Service connection for hearing loss of the right ear is denied. Service connection for a back disorder is granted. Reopening of the claim of entitlement to service connection for a right shoulder disorder, on the basis of receipt of new and material evidence, is granted. Service connection for a right shoulder disorder is denied. FINDINGS OF FACT 1. Hearing loss of the right ear did not result from injury or disease incurred in the line of duty during a qualifying period of service. 2. A back disorder did not result from injury or disease incurred in the line of duty during a qualifying period of service. 3. In a January 2005 rating decision, the RO denied a claim of entitlement to service connection for a right shoulder disorder; the evidence of record at the time of the January 2005 decision substantiated an injury during a qualifying period of service, but did not substantiate a current chronic disability resulting from such injury. 4. The evidence received since the January 2005 decision relates to a fact necessary to substantiate the claim of entitlement to service connection for a right shoulder disorder which was unestablished at the time of the January 2005 decision. 5. A right shoulder disorder did not result from injury or disease incurred in the line of duty during a qualifying period of service. CONCLUSIONS OF LAW 1. Right ear hearing loss was not incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2017). 2. A back disorder was not incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 3. The January 2005 RO rating decision is final with respect to entitlement to service connection for a right shoulder disorder. 38 U.S.C.A. § 7105 (West 2014). 4. The criteria for reopening the claim of entitlement to service connection for a right shoulder disorder have been met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108 (West 2014); 38 C.F.R. §§ 3.102, 3.156 (a), 3.159 (2017). 5. A right shoulder disorder was not incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant had no full time active duty. He served as a member of the National Guard and had periods of active duty for training (ACDUTRA), including basic training from November 1983 to March 1984 and annual training, and periods of inactive duty training (INACDUTRA). This appeal comes before the Board of Veterans' Appeals (Board) from a May 2013 rating decision of the RO in Louisville, Kentucky. The appellant submitted additional medical evidence after the most recent Supplemental Statement of the Case and did not specify whether he wished to have the claim remanded to the RO for initial consideration of this evidence. A recent amendment to governing law (38 U.S.C.A. § 7105) stipulates that, with respect to claims for which a substantive appeal is filed on or after the date that is 180 days after the Aug. 6, 2012, date of the enactment of the amendment, i.e., February 2, 2013, such evidence shall be subject to initial review by the Board unless the claimant or the claimant's representative, as the case may be, requests in writing that the agency of original jurisdiction initially review such evidence. As the current appeal was perfected by a substantive appeal received on April 28, 2014, the Board will consider this evidence in the first instance. VA law provides that, for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, or other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation, except if the disability is a result of the claimant's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A. §§ 1110, 1131 (West 2014). Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Before becoming entitled to status as a claimant for VA benefits, an appellant must first demonstrate by a preponderance of the evidence (1) that he or she is a "veteran," or (2) "veteran" status for the person upon whose military service the claim for VA benefits is predicated. Laruan v. West, 11 Vet. App. 80, 84-86 (1998) en banc. The term "veteran" means a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C. § 101(2) (West 2014). The term "active military, naval, or air service" includes (1) active duty; (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty; and (3) any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty; or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C. § 101(24) (West 2014). As noted above, the appellant had no active duty service but had only periods of ACDUTRA and INACDUTRA. The Board emphasizes the more restrictive requirements applicable to periods of ACDUTRA and INACDUTRA as compared to active duty service. The law applicable to active duty service establishes "veteran" status without further requirements. Moreover, it permits a grant of service connection simply by evidence establishing an etiological relationship between an injury or disease in service and post-service incurrence of disability. The law pertaining to periods of ACDUTRA and INACDUTRA requires that the claimant have become disabled during the period of ACDUTRA or INACDUTRA in which the injury or disease occurred, and specifically requires that the disease and/or injury have been incurred in the line of duty. Moreover, the claimant bears the burden of establishing that this sequence of events has occurred before "veteran" status is granted. 38 U.S.C § 101(24). Certain presumptions are generally available to claimants to assist in substantiating various elements of a claim for service connection. The presumption of soundness (38 U.S.C. § 1111; 38 C.F.R. § 3.304(b)) applies to "every veteran." Therefore, establishing "veteran" status is a prerequisite to application of this presumption for any period of service. Smith v. Shinseki, 24 Vet. App. 40, 45-46 (2010). The presumption of aggravation (38 U.S.C. § 1153 (West 2014); 38 C.F.R. § 3.306(a) (2017)) and the presumption of service connection for specific chronic diseases (38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309), including arthritis, do not apply to periods of ACDUTRA and INACDUTRA. After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2014). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2016). A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert at 54. Service treatment records include the service entrance examination, which includes pertinently normal findings. Audiometric testing was not conducted. Whispered voice hearing testing was 15/15 for each ear. A June 5, 1985, Sick Slip, notes a back injury and assigns light duty for the rest of the day, with a return to duty the following morning. A report of medical examination performed on February 22, 1987, reveals normal findings for the upper extremities, spine, and ears. Physical profile ratings of U-1, L-1, and H-1 were assigned. The U stands for upper extremities. This factor concerns the arms, shoulder girdle, and upper spine (cervical, thoracic, and upper lumbar) in regard to strength, range of motion, and general efficiency. The L stands for lower extremities. This factor concerns the lower back musculature and lower spine (lower lumbar and sacral) in regard to strength, range of motion, and general efficiency. The H stands for hearing and ears. This factor concerns auditory acuity and disease and defects of the ear. The number 1 indicates that an individual possesses a high level of medical fitness and, consequently, is medically fit for any military assignment. See 9-3(c)(1) Army Regulation 40-501, Change 35; Hanson v. Derwinski, 1 Vet. App. 512 (1991); Odiorne v. Principi, 3 Vet. App. 456, 457 (1992). Pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 25 20 15 LEFT 30 15 20 20 25 A report of medical history completed by the appellant on February 22, 1987, reveals the appellant's account that he had no history of, or current, recurrent back pain, hearing loss, or painful shoulder. A report of medical examination performed on June 17, 1989, reveals normal upper extremities, spine, and ears. Profile ratings of U-1, L-1, and H-1 were assigned. Pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 15 10 10 LEFT 30 30 25 20 20 A report of medical history completed by the appellant on June 17, 1989, reveals the appellant's account that he had a history of, or current, recurrent back pain and hearing loss, but no history of, or current, painful shoulder. A report of medical examination performed on January 9, 1993, reveals normal upper extremities, spine, and ears. Profile ratings of U-1, L-1, and H-1 were assigned. Pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 10 15 10 15 LEFT 25 20 20 25 25 A report of medical history completed by the appellant on January 9, 1993, reveals the appellant's account that he had no history of, or current, recurrent back pain, hearing loss, or painful shoulder. A February 7, 1997, Hospital Note reveals the appellant was treated following a bus accident. The bus did not overturn, but was at a steep angle when the paramedics arrived. The appellant said he was not unconscious and did not hit his head or anything, but he apparently jammed both of his legs up under his feet and abraded and contused the medial aspects of both distal legs. An X-ray of the thoracic spine showed a mild deformity at T6, which was deemed probably longstanding and congenital. No evidence of compression fracture was identified. An X-ray of the lumbar spine showed no vertebral compression fracture or spondylolisthesis. Vertebral body heights, pedicles, and intervertebral disc spaces were well maintained. There was no paravertebral soft tissue mass. A February 7, 1997, Line of Duty Investigation notes that the appellant was injured in a bus accident. The appellant was noted to have been on INACDUTRA at the time of the accident, which was found to have occurred in the line of duty. The injuries sustained were noted to be cuts and abrasions on the arms and legs, and swelling of the left ankle. A February 14, 1997, Clinical Note reveals complaint of left leg and ankle pain, as well as pain in the right shin, back, and left elbow. A report of medical examination performed on December 13, 1997, reveals normal findings for the upper extremity, spine, and ears. A physical profile rating of U-1, L-1, H-1 was assigned. Pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 10 10 15 LEFT 20 20 25 20 25 A report of medical history completed by the appellant on December 13, 1997, reveals the appellant denied any history of, or current, recurrent back pain and hearing loss. The appellant reported a history of a painful shoulder. An August 15, 1999, Clinical Note from Western Baptist Hospital reveals the appellant was playing basketball when another individual struck his shoulder with an elbow. He complained of shoulder, neck, and back pain. He was unable to raise his arm and the right shoulder appeared lower than the left. He denied any history of fracture, but he reported that he had dislocated it previously. A contusion of the right shoulder was assessed. An August 16, 1999, X-ray of the right shoulder was normal with no fracture or dislocation seen. The glenohumeral joint was normal as was the acromioclavicular joint. A December 10, 1999, Line of Duty Investigation notes the right shoulder injury, but also notes that he experienced back pain. A January 2000 Line of Duty Investigation reveals that the appellant injured his right shoulder on August 15, 1999, and though he did not think it was serious at the time, he started to experience severe pain subsequently and was treated for torn ligaments and a separated shoulder. The injury was determined to be in the line of duty during INACDUTRA. A report of medical examination performed on January 12, 2002, reveals abnormal upper extremities, but this was specified as the right wrist. A normal spine and normal ears were noted. Profile ratings of U-1, L-1, and H-1 were assigned. Pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 10 15 LEFT 25 10 20 20 30 After the appellant's National Guard service was completed, an April 2, 2002, Clinical Note by D. French, MD, reveals complaint of back pain and mid back pain which flared up on the previous Sunday. The assessment was thoracic and lumbar spasms (VBMS record 07/30/2012). A January 14, 2008, Clinical Note reveals complaint of low back pain since last night (VBMS record 07/30/2012). A March 9, 2009, Clinical Note reveals complaint of low back pain which started Friday afternoon. This problem was noted to be chronic for a few years, last year was worse (VBMS record 07/30/2012). A June 29, 2011, Clinical Note from C. Hill, MD, notes the appellant has had back problems since March 2009 (VBMS record 07/30/2012). A July 6, 2011, MRI of the lumbar spine reveals degenerative disc disease at L4-5, with an annular tear along the posterior central aspect. No central or neural foraminal stenosis was present (VBMS record 02/01/2005). A February 16, 2012, Audiology Assessment reveals pure tone thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 30 30 40 LEFT 20 20 25 15 30 A March 28, 2012, Clinical Note from K. Strenge, MD, notes that the appellant was curious as to whether or not focal problems at L4-5 may have begun during service. Dr. Strenge told him that, given the fact that his other disc levels appeared very normal, and if he had problems off and on since the initial injury in the army, it is feasible that he would sustain an injury to the disc which had gradually degenerated over time. Dr. Strenge told him it was difficult to prove this for sure, but given that his other disc levels were very well maintained, "he will very well have this to happen" (VBMS record 07/30/2012). A July 2, 2012, letter from a registered nurse who is an acquaintance of the appellant attests to his account of the bus accident and that he started having lumbar spine pain shortly after the accident. A February 11, 2013, VA Spine Examination reveals a diagnosis of lumbar degenerative disc disease, post L4-5 discectomy and fusion. The appellant reported that he was in a bus accident on his way to a drill weekend when the bus ran into a ditch. He stated he was treated conservatively and released the next day. He stated X-rays were taken and they were negative to his knowledge. He stated, about a month later, he began to have symptoms of intermittent mechanical low back pain. He stated for several years this was treated occasionally with conservative treatment. He had significant worsening of his back symptoms in 2009 and stated he was diagnosed with degenerative disc disease and a herniated disc. He subsequently underwent a L4-5 discectomy and fusion in November 2012. He had a significant work history of heavy manual labor in water-blasting chemical tanks and building fiberglass barge covers since 1983. Review of the file confirmed the bus accident in 1997. Post-accident X-rays were normal and he was treated conservatively for a muscle contusion. Orthopedic notes indicate onset of the current back condition in approximately 2009 and a finding of degenerative disc disease and L4-5 herniation dated 2011. Currently he complains of typical arthritic symptoms of near-constant low back ache with paresthesia and numbness down the left leg. The VA examiner opined that it is less likely than not the current back condition is due to or caused by the muscle contusion he experienced February 1997. The rationale was that X-rays at the time of the accident were normal. Orthopedic records indicate onset of the current back condition in 2009, with MRI confirmation of a lumbar disc herniation and degenerative disc disease. There is no evidence of a disc herniation or arthritis at the time of the bus accident. According to the VA examiner, an acute muscle contusion is not considered of the severity to result in disc herniation or arthritic development that the appellant is currently experiencing in any current medical literature known to the examiner. However, disc herniation and arthritis are expected consequences of heavy manual labor in medical literature which is consistent with the appellant's occupational history. Regarding the right shoulder, the examiner diagnosed a right shoulder contusion, which had resolved. The current diagnosis was rotator cuff syndrome. The examiner opined that it is less likely than not the appellant's right shoulder condition is due to or caused by the injury in August 1999. The rationale is that X-rays at that time were negative. There was no evidence of rotator cuff condition. The records were silent for any ongoing right shoulder conditions or current treatments/diagnosis. Review of the shoulder evaluation indicates the injury was previously determined not so significant as to result in a chronic disability. According to the examiner, a shoulder contusion is not considered of the severity to result in a rotator cuff pathology more than 20 years post injury in current medical literature. There is no evidence at the time of the 1999 injury to suggest there was a rotator cuff condition present. Rotator cuff syndromes are well documented as an expected outcome of heavy manual labor which is consistent with the appellant's occupational history. A February 2013 VA Audiology examination reveals pure tone thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 30 25 45 LEFT 25 25 25 25 35 Speech recognition scores were 94 percent in the right ear and 92 percent in the left ear. The examiner opined that right ear hearing loss was not at least as likely as not caused by or a result of service. The rationale was that periodic examinations over the course of the appellant's National Guard service did not reveal any significant threshold shifts, and hearing in the right ear was normal at separation. A September 27, 2013, letter from C. Hill, MD, reveals his observation that the 1997 bus accident seemed to start the downward spiral of the appellant's lower back pain. The appellant subsequently developed lower leg pain which has continued on to the present time. He currently has a very focal disc problem at L4-5. The adjacent segments were relatively maintained with no signs of stenosis. Dr. Hill opined that it is very possible that an injury occurred to the L5 disk during one of his accidents, again, specifically the incident in 1997. This disc likely gradually degenerated over time after the initial incident. This subsequently led to his increased lower back pain and leg radiculopathy requiring lumbar surgery. Dr. Hill opined that it is at least 50 percent likely that the appellant's current disability is related to his injury in the service (VBMS record 10/21/2013). A May 24, 2014, DBQ completed by Dr. Hill, states that the appellant was involved in a motor vehicle accident on February 7, 1997, while on "active duty" in the National Guard. He was hospitalized overnight. He has had ongoing treatment for low back pain since then. A September 3, 2014, VA Hearing Examination reveal pure tone thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 15 20 35 LEFT 20 20 20 25 35 Speech recognition was 92 percent in the right ear and 84 percent in the left ear. The examiner opined that the appellant's right ear hearing loss was not at least as likely as not (50% probability or greater) caused by or a result of an event in military service. The rationale was that the service treatment records document normal hearing in the right ear on a medical examination dated February 1987 and on December 1997, without any significant shift in hearing thresholds. Based on this documentation, there is no evidence in the record that the appellant sustained noise injuries based on audiograms. If there is a current hearing loss, there is no basis to conclude that this hearing loss was causally related to military service. The Institute of Medicine (2006) reported that, based on current understanding of auditory physiology, hearing loss from noise injuries occurs immediately following exposure. The Institute of Medicine stated there was no scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after such noise exposure. Therefore, there is no scientific basis on which to conclude that the current hearing loss was caused by or the result of military service, to include military noise exposure. A December 2014 DBQ submitted by the appellant and completed by A. Jackson, NP, reveals a diagnosis of a strain of the left shoulder. There is no diagnosis for the right shoulder. X-rays taken on December 9, 2014, and included in the report, showed no significant abnormalities for either shoulder. Osseous structures were intact and normally aligned. There were no prominent arthritic changes and there were no soft tissue findings to suggest calcified tendinitis or bursitis. Dr. Jackson noted that the appellant injured the right shoulder in August 1999, and that, while playing basketball for physical training, a player came down on his shoulder after jumping up. His arm was placed in a sling for 2 weeks and pain medication was prescribed. No surgery or physical therapy were prescribed. Dr. Jackson opined that the "claimed condition" was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that the appellant had no issues related to the "claimed condition" prior to military service. Onset of the condition was during service, documented in the Service Medical Records. There was evidence of continuous treatment and care. "A nexus has been established." A February 26, 2016, VA examination reveals a diagnosis of left shoulder strain. There is no diagnosis for the right shoulder. There was also no opinion. A February 26, 2016, VA examination report reveals a diagnosis of degenerative arthritis of the spine. No opinion was provided. The Board finds initially that the January 2005 rating decision which denied service connection for a right shoulder disorder became final upon expiration of the appeal period. While the appellant submitted evidence within the appeal period, to the extent it pertained to the right shoulder, it duplicated evidence previously considered, such as the line of duty investigation, and in-service treatment reports related to the shoulder injury. No official service department records relevant to the claim, which existed but had not been associated with the claims file, were received (other than duplicates), and the appellant did not submit new and material evidence within the appeal period. According, the decision became final. See 38 C.F.R. § 3.156(b), (c). While not received within the appeal period, the Board further finds that new and material evidence has been received subsequent to the January 2005 decision. At the time of the January 2005 rating decision, the evidence substantiated an injury in service, but did not substantiate a current disability or a nexus between a current disability and service. The evidence received since January 2005 includes evidence addressing both of these elements. Accordingly, the Board concludes that reopening of the claim is warranted based on the receipt of new and material evidence. After a review of all of the evidence, the Board finds that a back disorder, a right shoulder disorder, and right ear hearing loss are not related to service. Pertinent to the Board's reasoning on each claim is the fact that the appellant had no full time active duty, but had only periods of ACDUTRA and INACDUTRA. With respect to the back and shoulder claims, the appellant maintains that each is related to an injury incurred during INACDUTRA. The appellant has never specified any particular INACDUTRA injury that caused his hearing loss, nor has he identified any particular ACDUTRA injury or disease. In contrast to the right shoulder and back claims, there is no line of duty investigation regarding right ear hearing loss. The law and regulations pertinent to such periods are significantly more rigorous than those applicable to full time active duty. Most importantly, the laws and regulations governing ACDUTRA and INACDUTRA require not only that the in-service injury or disease be related by competent evidence to the post-service disability, they require that the disability actually began during the period of ACDUTRA or INACDUTRA in which the injury or disease occurred. Notably, none of the opinions submitted in favor of these claims even addresses whether the appellant was disabled during a period of ACDUTRA or INACDUTRA. With respect to the right shoulder, the appellant was examined thoroughly at the time of the injury. X-rays were taken. These were completely normal. The only diagnosis rendered was a contusion. His right shoulder was otherwise normal. Dr. Jackson provides a current diagnosis of a left shoulder strain; however, despite a nominally positive nexus opinion regarding the right shoulder, no diagnosis was actually rendered for the right shoulder. Dr. Jackson repeatedly referred to the "claimed condition" but did not provide a diagnosis. Significantly, X-rays included in the report were normal. The appellant's right shoulder was also found to be normal by the March 2016 VA examiner. This is probative and persuasive evidence that a chronic right shoulder disability did not exist at the time of these examinations. Therefore, it cannot be said that the appellant was disabled due to a right shoulder injury during this or any period of INACDUTRA. With respect to the back, the appellant was also examined after the INACDUTRA bus accident and X-rays of the spine were taken. The results showed only a congenital thoracic abnormality. The low back was normal. This is probative and persuasive evidence that a back disability did not exist at that time, and that the thoracic congenital abnormality was not aggravated at that time. The opinion of Dr. Hill does not address this evidence or even acknowledge it. The Board finds the opinion of the February 2013 VA examiner to be more persuasive than that of Dr. Hill as it is more consistent with, and informed by, the evidence pertinent to service. The Board therefore assigns it greater probative weight. The Board finds that a preponderance of the evidence is against the incurrence of back disability due to injury during this period of INACDUTRA. Moreover, while the appellant was seen on several occasions for back pain during his National Guard service, a preponderance of the evidence is against the incurrence of chronic back disability during any specific period of INACDUTRA or ACDUTRA. Turning to hearing loss, there is no medical opinion that purports to establish the incurrence of a right ear hearing loss disability during any specific period of INACDUTRA or ACDUTRA. While service connection has been granted for left ear hearing loss and tinnitus, the September 2014 VA examiner found against a relationship between right ear hearing loss and service. With respect to each claim, the Board has considered the appellant's lay statements and those submitted on his behalf by numerous friends and family members. Generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 ('sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer'); 38 C.F.R. § 3.159(a)(2). With respect to the back and shoulder claims, there is no dispute that there was an injury in the line of duty during a qualifying period of service. The appellant injured his back and right shoulder and line of duty investigations were conducted for each injury. The question remaining to be determined regards whether a chronic disability was also incurred during the same period of service. The Board finds that determining the onset of chronic spinal disc disease and rotator cuff syndrome is not the equivalent of relating a broken bone to a concurrent injury to the same body part (Jandreau, at 1377). Such an opinion requires specialized medical knowledge and experience. Accordingly, the lay statements are not competent evidence of the onset of chronic disability during a qualifying duty period. Several statements attest to the appellant's statement that he was told at the time of the bus accident that he had a back injury. However, this is contradicted by the service records. With the exception of a congenital deformity of a thoracic vertebra, there was no back abnormality. The statements also assert that the injury was the start of ongoing back problems. However, this too is contradicted by the service records. As noted above, a December 13, 1997, report of medical history reveals the appellant denied any history of, or current, recurrent back pain. This was after the period of INACDUTRA during which the accident occurred. The Board acknowledges the January 2000 finding which amends prior findings regarding the right shoulder. In contrast to the original August 1999 investigation, the January 2000 investigation notes that the appellant started to experience severe pain and was treated for torn ligaments and a separated shoulder. As discussed above, the appellant was examined at the time of the injury and the findings at the time of the INACDUTRA injury were normal. While the Board is bound to accept the service department findings that a particular injury occurred in the line of duty, the question of whether the appellant was disabled during INACDUTRA is for the VA adjudicator to decide. In sum, the Board finds that the appellant was not disabled in the line of duty during a qualifying period of service with a hearing loss disability of the right ear, a back disorder, or a right shoulder disorder. Therefore, service connection for the claimed right ear hearing loss, back disorder, and right shoulder disorder, is not warranted. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against each claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD L. Cramp, Counsel Copy mailed to: John S. Berry, Jr. Department of Veterans Affairs